Legal Affairs committee meeting 20 December

According to MEP Marielle Gallo, rapporteur for ACTA, ACTA is compatible with the acquis, the current EU laws. In her draft opinion, which she will launch in January, she will try to respond to all criticism raised with respect to and against ACTA. She said that her dear colleagues should be aware that ACTA is compatible with the Community acquis.

She referred to art 6 ACTA, which is a provision to be applied horizontally and which guaranties against all abuse. It also guaranties respect for the principle of proportionality. She called to look at ACTA at its merits, and forget about rather far-fetched opinions.

She also referred to ACTA art 27, paragraph 2 and 3 containing safeguards.

Beyond the safeguard clauses which are in the agreement, interpretations of provisions can only be done in the light of European Court of Justice case law, no Institution or member states can go against limits which are established by the highest level of EU legal system.

Pirate MEP Christan Engström said the Legal Service’s opinion confirms many concerns raised about the ACTA agreement whether it is compatible with fundamental rights in the EU and elsewhere in the world. In paragraph 40 the language is extremely guarded: “It appears that the agreement per se does not impose any obligation on the Union that is manifestly incompatible with fundamental rights.” If I ever listened to guarded legal language, that’s it. The Opinion is quite rightly so guarded because very much depends on how this agreement is actually implemented in member states’ law or directives.

He gave the example that damages should be proportional, mentioned that ACTA’s damages are based on retail price. A 2 terabyte disk can hold roughly half a million songs, if you calculate that at the market price of 1 euro per song, which is normal, the damages for having a 2 terabyte disk, full of music, would be half a million euro.

“Now would that be proportionate or not? This is not an extreme example, this is something that lots of teenagers do. Is it really proportionate that a family would have to sell their house and all their possessions if it were found out? This legal opinion seems to be of the opinion that well, yes, perhaps that could be.”

“The lawyers who wrote the assessment for the INTA committee in June this year where of the opposite opinion. They said this raises real concerns about whether this is proportional or not. The ACTA agreement is at the very least borderline when it comes to respect of fundamental rights.”

“We have a case where there are opposing opinions from quite serious and qualified lawyers at both sides. The ones of the INTA assessment saying this is probably not proportionate, the legal service suggesting may be it is or not.”

“This strengthens the case for what we are asking for that we should send the ACTA agreement to the European Court of Justice to get clear and proper guidance as to how it should be implemented, if it can be implemented in a way that is compatible with fundamental rights and the acquis.”

Mr Engström said the legal service mentioned that three strikes were taken out. A year ago the Commission had replied to Engström’s question that three strikes never were discussed.

“As the legal service points out, the problem with the ACTA agreement is that it is very vague. It is not at all obvious how various things should be interpreted.”

“One of the core aspects of the ACTA agreement is cooperation between rights holders and Internet service providers and the business community in general. Earlier is was clear that meant three strikes. But now it is unclear what this cooperation is supposed to mean.”

Mr Engström mentioned that China is not a party to ACTA, and asked whether ACTA is worthwhile at all. With signing ACTA we will lose all our moral high ground in relation to China.

Liberal MEP Thein supported transparency and the call for a European Court opinion.

Austrian Green MEP Eva Lichtenberger said we have to get clarification from the Court and legal certainty. These things can be used against citizens and also against competitors.

A EP legal service representative said that experts agree pretty much with the conclusions they reached. In the draft agreement there is no provision allowing us to conclude that there is a contradiction per se with fundamental rights, of course, obviously, you have to look at the application of such provisions. He said the Parliament can ask the European Court of Justice an opinion on ACTA.

He said that regarding access to the legal service’s opinions the Secretary-General was the final authority.

Mrs Gallo said that asking the Court an opinion on ACTA would lose two years and that would have disastrous effects on the economy of the EU.

For instance, Korff and Brown: “Human rights were effective ignored, apart from the inclusion in the Agreement of vague and ineffective ‘without prejudice’ clauses that fail to redress the balance, and are little more than fig-leaves.”

Today the European Parliament adopted a non-binding resolution on the trade agreement with the United States (TTIP). Based on this resolution we could have a discriminating and expansive investor-to-state dispute settlement (ISDS) system, rigged to the advantage of the United States.

Martin Schulz, the president of the European Parliament proposed a compromise amendment on investor-to-state dispute settlement (ISDS). [1]
The amendment calls on the EU commission to replace ISDS with ISDS: "to replace the ISDS-system with a new system for resolving disputes between investors and states".

The French government published a proposal for investor-to-state dispute settlement (ISDS) reforms: Towards a new way to settle disputes between states and investors, May 2015. (pdf, French: Le Monde)
Summary
The French proposal would grant for-profit arbitrators, working in a system that creates perverse incentives, vast discretionary powers.

Last week the European Parliament postponed the vote on a resolution on the EU-US trade agreement (TTIP). The vote was postponed because many social democratic members oppose investor-to-state dispute settlement (ISDS).

Wednesday the European Parliament will vote on a resolution on TTIP, the agreement with the US under negotiation. The EU commission wants to add investor-to-state dispute settlement, or ISDS, to this agreement.

Social democratic ministers from six EU countries published reform proposals for the highly controversial investor-to-state dispute settlement (ISDS) mechanism. ISDS gives foreign investors the right to bypass local courts and use international arbitration to fight out conflicts with states.

EU Trade Commissioner Malmström addressed a question from MEP Adam Gierek on TTIP effects on transatlantic patentability differences. The Commissioner did not actually answer the question of the Polish social democrat and responded with routine information: "Notwithstanding patent protection granted by US law to computer programs, our current international obligations ensure copyright protection in both parties."

Wikileaks has released the "Investment Chapter" from the secret negotiations of the TPP (Trans-Pacific Partnership) agreement. It contains the highly controversial investor-to-state dispute settlement mechanism (ISDS), which makes it possible for multinational to sue states for international tribunals.

The European Commission investigates a permanent international investment court as a replacement of the controversial investor-to-state dispute settlement mechanism (ISDS). The plan for a court and the road map towards it are fundamentally flawed.

Today EU commissioner Malmström gave a speech in the European Parliament trade committee on investor-to-state dispute settlement (ISDS). ISDS gives foreign investors the right to use arbitration against states, instead of using local courts.

Today the EU declassified a two year old mandate of the member states to the European Commission to negotiate the services agreement TiSA. These mandates are drafted by the European Commission and approved by the member states in the European Council and authorise the European Commission to negotiate with third countries.

A Vrijschrift letter to the Dutch Parliament highlights the dangers of investor-to-state dispute settlement (ISDS) in the trade agreements with Canada (CETA) and Singapore (EUSFTA). On 25 March EU trade ministers will meet (informally) to discuss trade agreements and ISDS.

The European Commission acknowledges that the unitary patent is not safeguarded against the granting of software patents by endorsing the EPO teaching:
21. Will the new unitary patent regime facilitate the patenting of computer programmes?

United States Senator Elizabeth Warren turned against investor-to-state dispute settlement (ISDS): "Why create these rigged, pseudo-courts at all?" Jeff Zients, director of the National Economic Council, posted a response to Warren on the White House website.

Since 1 January 2015 online traders in the EU, selling items like "laser swords" in an app, have to apply the applicable value-added tax (VAT) rate to their purchases and submit the tax to the applicable tax authority of the responsible European member state. The new rules affect "laser swords", document templates and SaaS but not traditional ecommerce trade of physical goods.

The European Commission published a textual proposal for the TTIP talks that includes the H-Word. Previously the European Commission had argued that (legal) harmonisation was not among the objective of the agreement: "Given the efficiency of their respective systems, the intention is not to strive towards harmonisation, but to identify a number of specific issues where divergences will be addressed."

Eva Kaili (S&D) from Greece asks the European Commission (under rule 130):
The Transatlantic Trade and Investment Partnership and potential areas of conflict with the Lisbon Treaty
The Transatlantic Trade and Investment Partnership (hereinafter TTIP) is a comprehensive free trade and investment agreement, which is currently being negotiated — behind closed doors — between the European Union and the US. In particular, all TTIP negotiations are swathed in secrecy, since the Commission is imposing the most stringent restrictions on the more important documents.

The European People's Party (EPP), the biggest group in the European Parliament, is in favour of investor-to-state dispute settlement (ISDS). I will discuss their position and conclude it creates three risks.

In October 2014 the European Commission published the draft text of the EU-Singapore trade agreement (EUSFTA) investment chapter. It contains investment protection rules for foreign investors and the controversial investor-state dispute settlement (ISDS), which gives foreign investors special rights in conflicts with governments.

Marietje Schaake, the European Parliament's liberal group's (ALDE) spokesperson on the trade agreement with the US (TTIP) published a blog on investor-state arbitration (ISDS). I will discuss her arguments below; to avoid cherry picking, I will quote her whole blog (for the links and images see her blog).

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